Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Burnett v. Burnett

Court of Appeals of Texas, Eighth District, El Paso

June 5, 2019

KAREN L. BURNETT, Appellant,
v.
THOMAS R. BURNETT, Appellee.

          Appeal from the 383rd District Court of El Paso County, Texas (TC# 95-13356)

          Before McClure, C.J., Rodriguez, and Hughes, JJ.

          OPINION

          YVONNE T. RODRIGUEZ, JUSTICE

         This is an appeal from a judgment on counterpetitions to enforce the property division in the parties' divorce decree. Karen L. Burnett ("Wife") filed a petition alleging that Thomas R. Burnett ("Husband") failed to pay her the full amount of the military retirement to which she was entitled under the divorce decree. Husband counterclaimed that he had overpaid Wife and, in addition, she owed him 40 percent of the monthly premiums for the Armed Services Survivor Benefit Plan ("SBP"). The trial court agreed with Husband and ordered that Wife pay Husband $2, 617.57 "for overpayments received by Petitioner and for her failure to fully reimburse Respondent the obligatory 40% of Survivor Benefit Premiums." We reverse and render, in part, and remand, in part.

         BACKGROUND

         The Burnetts married in 1976. They divorced in 1998, by which time Husband had retired from the military. A jury recommended that Husband be awarded 40 percent of his military retirement and that Wife be awarded the remaining 60 percent. The divorce decree incorporates this recommendation by the following award to Wife:

All right, title and interest in and to SEVEN HUNDRED FIFTY FOUR AND 80/100 DOLLARS ($754.80) per month, of the United States Army disposable retired pay to be paid as a result of THOMAS REFINE BURNETT's service in the United States Army, and sixty percent (60%) of all increases in the United States Army disposable retired pay due to cost of living or other reasons, if, as, and when received.

         This provision will be referred to as the "Retirement Award."

         In related provisions, the decree orders Husband to designate Wife as a beneficiary under the SBP, orders Wife to pay to Husband 40 percent of the cost of that SBP, and directs that this cost will offset the amount of the Retirement Award paid to Wife. For approximately fourteen years, Husband determined the amount he owed Wife under the Retirement Award by taking his gross pay, deducting a sum for VA waiver, calculating 60 percent of the resulting figure, deducting from that figure $754.80 paid directly to Wife by the Army, and then deducting the 40 percent SBP premium Wife was ordered to pay. By this method, Husband paid Wife 60 percent of all cost of living increases ("COLAs") he received on a cumulative basis. But after receiving a letter from Wife in February 2012 stating that he had underpaid her, Husband sought the advice of new counsel, who informed him that he was calculating his payments wrong. After that point, Husband paid Wife 60 percent of COLAs only in the year they were first received rather than cumulatively, as he had previously.[1]

         In June 2012, Wife filed a petition seeking to enforce the Retirement Award and alleging that Husband had underpaid her under that award. Husband filed a counterpetition asserting that he had actually overpaid Wife under the Retirement Award and that she had failed to pay him for the SBP premiums.

         The issues were tried to the bench. Wife testified that Husband owes her $7, 335.40 in "back pay." She also testified that she had paid Husband $138.43 per month for SBP premiums according to a prior court ruling. Adding those payments to the back pay arrears, Wife concluded that Husband owes her $9, 133.77. Husband did not offer any evidence of the amount of SBP premiums he alleges Wife owes, or the amount of any overpayments he alleges he made to her.

         The court entered findings of fact and conclusions of law construing the Retirement Award, as a matter of law, as encompassing two separate and distinct components: (1) a flat sum of $754.80, being Wife's share of Husband's disposable retired pay; and (2) 60 percent of any COLA received by Husband, but only in the year in which it was first received. The logic appears to be that, after the year in which it is first received, a COLA is incorporated into Husband's disposable retired pay, and Wife's entitlement to any portion of that pay is limited to $754.80.

         Based on its findings of fact and conclusions of law, the court entered judgment awarding Husband $2, 617.57 as compensation for both his overpayment under the Retirement Award and Wife's underpayment of SBP premiums. The court's findings do not reveal how it arrived at the sum of $2, 617.57, or what portion of that figure is attributable ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.